No. 96-8569
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
JESUS GUTIERREZ-TAVARES, PETITIONER
v.
IMMIGRATION AND NATURALIZATION SERVICE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
WALTER DELLINGER
Acting Solicitor General
FRANK W. HUNGER
Assistant Attorney General
DONALD E. KEENER
EMILY A. RADFORD
CARL H. MCINTYRE, JR.
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
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QUESTIONS PRESENTED
1. Whether petitioner became a citizen of the United States
at the time of his birth outside the United States, given his
citizen mother's failure to satisfy statutory residency require-
ments in force at the time of his birth.
2. Whether the proceedings leading up to petitioner's
deportation violated his statutory or constitutional rights.
(I)
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IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
No. 96-8569
JESUS GUTIERREZ-TAVARES, PETITIONER
v.
IMMIGRATION AND NATURALIZATION SERVICE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. E1-E11) is not
published, but the decision is noted at 92 F.3d 1192 (Table). The
opinions of the Board of Immigration Appeals (Pet. App. C1-C5) and
the immigration judge (Pet. App. B2-B4) are unreported.
JURISDICTION
The judgment of the court of appeals was entered on July 30,
1996. A petition for rehearing was denied on November 12, 1996.
Pet. App. F1. The petition for a writ of certiorari was filed on
December 16, 1996, and placed on the docket on April 10, 1997. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
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STATEMENT
Petitioner was born in Mexico in 1948, and entered the United
States as a lawful permanent resident in 1954. Pet. App. Cl. In
1985, petitioner was convicted in an Arizona court of unlawfully
possessing heroin and cocaine for the purpose of selling them.
Ibid. He was sentenced to two consecutive terms of seven years'
imprisonment.
1. In November 1985, the Immigration and Naturalization Ser-
vice (INS) served petitioner with an order to show cause why he
should not be deported under former Section 241 (a) (11) of the
Immigration and Nationality Act (INA), 8 U.S.C. 1251 (a) (11) (1982),
on the basis of his narcotics convictions. Pet. App. A1. The
order to show cause indicated that the date and time for hearing
would be set later. Ibid. The matter was first brought before an
Immigration Judge (IJ) in August 1993, and the proceeding was then
adjourned to allow the parties additional time to prepare. Pet.
App. B3. When the hearing resumed in December 1993, petitioner
admitted his convictions, but he claimed that he had acquired
United States citizenship at birth because his mother was a United
States citizen. Ibid. Petitioner also requested (see id. at B4)
a discretionary waiver of deportation under former Section 212 (c)
of the INA, 8 U.S.C. 1182 (c) (Supp. IV 1992).
The IJ ordered petitioner deported. Pet. App. B2-B4. The IJ
held that petitioner's claim to citizenship was governed by prior
law, and that petitioner did not satisfy the applicable require-
ments because his mother was not present in the United States for
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ten years, five of them after the age of 16, before she gave birth
to petitioner. Pet. App. B3-B4. The IJ held that petitioner was
statutorily ineligible for relief under Section 212 (c) because he
had been convicted of an aggravated felony for which he had served
more than five years in prison. Pet. App. B4.
2. The Board of Immigration Appeals (BIA) affirmed. Pet.
App. C1-C5. The Board held (id. at C2) that petitioner's citizen-
ship claim was governed by Section 201(g) of the Nationality Act of
1940, 54 Stat. 1138, which required that a citizen parent have
resided in the United States for ten years, five of them after the
age of 16, in order to transmit citizenship to a child born abroad,
whereas petitioner did not claim that his mother had resided in the
United States for more than five years before his birth. The Board
rejected petitioner's contention that a savings clause in the 1940
Act preserved his mother's ability to transmit citizenship without
satisfying the extended residency requirement, on the ground that
even if that clause applied to petitioner, it did not apply to
provisions relating to the transmission of citizenship at birth.
Pet. App. C2.
The BIA agreed with the IJ that petitioner was statutorily
ineligible for a waiver of deportation under former Section 212(c)
of the INA, and it rejected petitioner's contention that the
prohibition on relief under that Section for certain aggravated
felons did not apply to felony convictions rendered before the
enactment of the prohibition. Pet. App. C2-C3. The Board held
that petitioner's other arguments either were without merit or
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raised constitutional issues outside the Board's jurisdiction. Id.
at C3-C5.
3. Petitioner sought review of the BIA's decision in the
United States Court of Appeals for the Ninth Circuit, under the
provision for such review contained at that time in Section 106(a)
of the INA, 8 U.S.C. 1105a(a) (1994). Briefing in the court of
appeals was completed, and the case submitted, in January 1996.
See Pet. App. El. In July 1996, the court affirmed the BIA's
decision. Id. at El-E11.
The court of appeals did not address the question of
jurisdiction. On the merits, the court agreed with the Board that
petitioner's mother did not meet the residency requirement for
transmission of her citizenship under the 1940 Act. Pet. App. E3.
The court rejected petitioner's reliance on the savings clause in
that Act, both because that clause did not apply to claims of
derivative citizenship, and because Congress repealed the clause
three months before petitioner's birth. Ibid. The court also held
that petitioner's felony convictions were final for purposes of
deportation, and that Section 212(c)'s restrictions on relief for
aggravated felons applied to petitioner without regard to the date
of his convictions. Id. at E4.
The court considered and rejected petitioner's claims that he
had a constitutional right of access to a copy of the Code of
Federal Regulations and to representation by a fellow inmate at his
deportation hearing. Pet. App. E5-E6. The court also rejected
petitioner's argument that the delay between the INS's issuance of
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the order to show cause in 1985 and the administrative hearings in
1993 violated his statutory or constitutional rights. Id. at E7-
E8. The court concluded that petitioner had no substantive due
process right to avoid the family separation that would result from
deportation (id. at E9-E10); that periodic changes in the legal
requirements for transmission of citizenship did not violate the
equal protection requirements of the Fifth Amendment (id. at E10);
and that Congress could rationally require that persons born in
this country reside here for an extended period in order to trans-
mit citizenship to children born abroad, without imposing the same
requirement on naturalized citizens, because the naturalization
process itself requires an extended period of residence and a dec-
laration of intent to remain in the United States (id. at E10-E11).
4. When it denied rehearing and rejected petitioner's
suggestion of rehearing en banc, the court of appeals also denied
petitioner's motions to stay the court's mandate and to continue
the stay of his deportation. Pet. App. F1. We are informed by the
INS that petitioner was deported to Mexico on February 17, 1997.
ARGUMENT
1. Petitioner has been deported to Mexico. Former Section
106 (c) of the Immigration and Nationality Act (INA), 8 U.S.C.
1105a (c) (1994), which applies to this case, provides that "[a]n
order of deportation * * * shall not be reviewed by any court if
the alien * * * has departed from the United States after the
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issuance of order." 1. "Once an alien has been deported, the
courts lack jurisdiction to review the deportation order's
validity." Stone v. INS, 514 U.S. 386, 399 (1995). 2.
2. Petitioner's claim to citizenship (Pet. 12-13) is insub-
stantial. As the BIA and the court of appeals held (Pet. App. C2,
E3), that claim is governed by Section 201 (g) of the Nationality
Act of 1940, ch. 876, 54 Stat. 1139, which (as relevant here)
accorded United States citizenship at birth to a child born outside
the United States if one parent was "a citizen of the United States
___________________(footnotes)
1 Section 106 (c) has been repealed, see Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L.
No. 104-208, Div. C, 306 (b), 110 Stat. 3009-612, but that change
applies only to "final orders of deportation * * * filed on or
after" September 30, 1996 (id. 306 (c) (1)), and the applicable
transitional rule (id. 309 (c)) provides that "in the case of an
alien who is in * * * deportation proceedings before" that date,
"the proceedings (including judicial review thereof) shall continue
to be conducted without regard to" the repeal. The deportation
proceedings against petitioner were commenced in 1985 by service of
the order to show cause (Pet. App. A1), and the deportation order
became final when the Board of Immigration Appeals dismissed peti-
tioner's appeal in April 1994 (id. at C1).
2 Some courts of appeals have asserted jurisdiction to review
executed deportation orders if the deported alien raises a "color-
able" constitutional claim. See, e.g., Camacho-Bordes v. INS, 33
F.3d 26, 27-28 (8th Cir. 1994) (discussing cases). That position
finds no support in the plain language of the statute. Even if it
were correct, however, petitioner's constitutional claims (see Pet.
7-11, 21-24, 28-37) would not merit further review by this Court.
For example, with respect to petitioner's double jeopardy and bill
of attainder claims (Pet. 31-37), see e.g., INS v. Lopez-Mendoza,
468 U.S. 1032, 1038-1039 (1984) ("The purpose of deportation is not
to punish past transgressions but rather to put an end to a contin-
uing violation of the immigration laws."); Marcello v. Bonds, 349
U.S. 302, 314 (1955) (Ex Post Facto Clause); Bugajewitz v. Adams,
228 U.S. 585, 591 (1913) (Holmes, J.) (same; determination of facts
in deportation proceeding "is not a conviction of crime, nor is the
deportation a punishment"); Urbina-Mauricio v. INS, 989 F.2d 1085,
1089 n.7 (9th Cir. 1993) (double jeopardy); Artukovic v. INS, 693
F.2d 894, 897 (9th Cir. 1982) (bill of attainder).
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who, prior to the birth of such [child], has had ten years' resi-
dence in the United States * * *, at least five of which were after
attaining the age of sixteen years." As the BIA found (Pet. App.
C2) , petitioner has produced no evidence that his mother met the
residency requirements of Section 201(g). See Pet. App. G3-G8.
Petitioner relies (Pet. 12-13) on a savings provision in the
1940 Act. The court of appeals correctly held (Pet. App. E3) that
that provision, by its terms, did not apply to claims of derivative.
citizenship. Compare 1940 Act 347(a), 54 Stat. 1168 (applying to
provisions "contained in either chapter III or in chapter V of this
Act") , with 54 Stat. 1138-1139 (setting out Section 201(g) of the
Act as part of Chapter II thereof). In any event, as petitioner
concedes (Pet. 12) , the savings clause was repealed before peti-
tioner was born. Act of June 25, 1948, ch. 645, 21, 62 Stat. 868
(Table) (effective Sept. 1, 1948). For that reason as well, it has
no application to this case.
Nor is there merit to petitioner's claim (Pet. 28-30) that
Section 201(g) of the 1940 Act violates principles of equal protec-
tion. Even if we assume that petitioner has standing to assert
such a claim, the court of appeals correctly recognized (Pet. App.
E10-E11) that Congress might sensibly choose to require that a
citizen parent have lived in this country for some extended period
before it would recognize that parent's foreign-born children as
United States citizens at birth, without imposing an identical
requirement on naturalized citizens, who would normally have
resided in this country for an extended period (and expressed the
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intention to remain) as a prerequisite for naturalization.
Compare, e.g., Rogers v. Bellei, 401 U.S. 815, 833-834 (1971).
That distinction is reasonable, and certainly cannot give rise to
constitutional concern in the context of Congress's plenary power
over the grant of citizenship to the foreign-born. See generally
id. at 827-836.
3. Petitioner's claim that the Immigration Judge and the BIA
should have considered his request for discretionary relief from
deportation under former Section 212 (c) of the INA (previously
codified at 8 U.S.C. 1182 (c)) is without merit. The Attorney
General does not have the authority to grant petitioner the waiver
that he seeks.
First, as the BIA and the court of appeal recognized (Pet.
App. C2-C3, E4), petitioner was ineligible for relief under Section
212(c) at the time of the administrative proceedings in this case
because he had been convicted of two aggravated felonies for which
he had served at least five years in prison. Although petitioner
argues (Pet. 24-28) that the denial of relief to aggravated felons
should not apply to him because his convictions predated the enact-
ment of the bar, every court that has considered the issue has re-
jected that argument. See Scheidemann v. INS, 83 F.3d 1517, 1519-
1526 & n.5 (3d Cir. 1996) (collecting cases).
Moreover, on April 24, 1996, while this case was under sub-
mission to the court of appeals, the President signed the Anti-
terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L.
No. 104-132, 110 Stat. 1214. Section 440 (d) of the AEDPA, 110
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Stat. 1277, amended the INA to preclude the grant of a waiver under
Section 212 (c) to, among others, any "alien who is deportable by
reason of having committed any criminal offense covered in section
241 (a) (2) (A) (iii)" of the INA (previously codified at 8 U.S.C.
1251 (a) (2) (A) (iii)). Petitioner has been convicted on separate
counts of possession of heroin and cocaine for sale, each of which
is an "aggravated felony" that is "covered in Section
241 (a) (2) (iii)." See 8 U.S.C. 1101(a) (43) (B). The AEDPA
amendments thus confirm that petitioner is not statutorily eligible
for discretionary relief under former Section 212 (c). 3
The AEDPA does not expressly state whether Section 440 (d) bars
the Attorney General from acting on a petition for relief under
Section 212 (c) filed on or before the date of the AEDPA's enact-
ment. In her recent decision in a case referred to her by the BIA
under 8 C.F.R. 3.1 (h) (iii), however, the Attorney General formally
determined that Section 440 (d) applies to cases that were pending
before an Immigration Judge or the BIA on the date of enactment.
In re Soriano (Feb. 21, 1997). 4. Discretionary relief under the
___________________(footnotes)
3 Section 304 of the IIRIRA, 110 Stat. 3009-587, repeals
Section 212 (c) in it entirety and replaces it with Section 240A of
the INA, which authorizes a new form of discretionary relief termed
"cancellation of removal." See IIRIRA 304 (a) (3) and (b). With
certain limited exceptions not applicable here, however, the
IIRIRA's provisions respecting cancellation of removal apply only
to administrative proceedings initiated on or after April 1, 1997.
See IIRIRA 309 (a) and (c). In any event, petitioner's aggravated
felony convictions would make him ineligible for relief under the
new provisions. See INA 240A (a) (3) (as amended by IIRIRA), to be
codified at 8 U.S.C. 1229b (a) (3).
4 We have provided petitioner with a copy of the Attorney
General's opinion. A copy of the opinion was lodged with the Clerk
of this Court in connection with our opposition to the certiorari
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immigration laws is prospective in nature, and the new provision
further limits the Attorney General's power to grant such relief in
the future to aggravated felons like petitioner. Id. at 3-6. 5
Application of the AEDPA amendment to petitioner is not, therefore,
retroactive.
4. Although the court of appeals issued an unpublished
opinion (Pet. App. E1-E11) resolving on the merits petitioner's
challenge to the final order of deportation entered against him,
the court did not have jurisdiction to review that order.
Section 440(a) of the AEDPA, 110 Stat. 1276, amended Section
106(a) (10) of the INA (previously codified at 8 U.S.C.
1105a(a) (10) ) to provide, in pertinent part:
Any final order of deportation against an alien who is
reportable by reason of having committed a criminal
offense covered in Section 241(a) (2) (A) (iii) , (B) , (C) ,
or (D) [of the INA] * * * shall not be subject to review
by any court.
Petitioner was held to be deportable by reason of his two convic-
tions for possessing heroin and cocaine for sale, both of which are
___________________(footnotes)
petition in Salazar-Haro v. INS, cert. denied, No. 96-1310 (May 27,
1997) .
5 See INS v. Lopez-Mendoza, 468 U.S. at 1038 ("The deporta-
tion hearing looks prospectively to the respondent's right to re-
main in this country in the future."). Moreover, just as new
"jurisdictional statutes `speak to the power of the court rather
than to the rights or obligations of the parties, '" Landgraf v. USI
Film Prods., 511 U.S. 244, 274 (1994), the repeal of Section 212(c)
speaks to the power of the Attorney General to waive deportation,
not to any "right" of an alien to obtain such relief. See also
Scheidemann, 83 F.3d at 1523 ("Like statutes altering the standards
for injunctive relief, " changes in the scope of the Attorney Gen-
eral's discretionary authority "ha[ve] only a prospective impact" ;
"[l]ike statutes constricting the jurisdiction of a judicial body,"
they "speak only to the power of a public agency.") .
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"aggravated felon [ies] and violations "relating to a controlled
substance" that are "covered in Section 241(a) (2) (A) (iii) [or]
(B)." See 8 U.S.C. 1101(a) (43) (B) (definition of "aggravated
felony"). 6. Section 440(a) of the AEDPA therefore prohibited
review of the final order of deportation entered against
petitioner.
As the court below recognized in another case it decided at
approximately the same time as this one, the enactment of Section
440(a) in April 1996 operated immediately to divest the courts of
appeals of jurisdiction over review petitions then pending before
them. See Duldulao v. INS,90 F.3d 396, 398-400 (9th Cir. 1996).
As this court explained in Landgraf v., USI Film Prods., 511 U.S.
244, 280 (1994), "application of new statutes passed after the
events in suit is unquestionably proper in many situations." Id.
at 273. In particular, "intervening statutes conferring or ousting
jurisdiction" are ordinarily given immediate effect, "whether or
not jurisdiction lay when the underlying conduct occurred or when
the suit was filed." Id. at 274. A new law "normally governs in
such situations because jurisdictional statutes 'speak to the power
___________________(footnotes)
6 Petitioner was held deportable under former Section
241(a) (11) of the INA, 8 U.S.C. 1251(a) (11) (1985). See Pet. App.
Cl. The Immigration Act of 1990, Pub. L. 101-649, 602(a), 104
Stat 5077 (1990), amended and reorganized Section 241(a). The
drug-related grounds of deportability formerly set out in Section
241(a) (11) were consolidated and restated in Section 241(a) (2) (B).
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of the court rather than to the rights or obligations of the
parties.' " Ibid. 7
Landgraf reaffirmed the long-standing principle that "when a
law conferring jurisdiction is repealed without any reservation as
to pending cases, all cases fall with the law." Bruner v. United
States, 343 U.S. 112, 116-117 (1952) (citing Kline v. Burke Constr.
Co., 260 U.S. 226, 234 (1922); Gwin v. United States, 184 U.S. 669,
675 (1902); Gurnee v. Patrick County, 137 U.S. 141, 144 (1890);
Sherman v. Grinnell, 123 U.S. 679, 680 (1887); Railroad Co. v.
Grant, 98 U.S. 398, 401 (1879); and Ex parte McCardle, 74 U.S. (7
Wall.) 506, 514 (1869)). "When the very purpose of Congress is to
take away jurisdiction, of course it does not survive, even as to
pending suits, unless expressly reserved. * * * If the aim is to
destroy a tribunal or to take away cases from it, there is no basis
for finding saving exceptions unless they are made explicit." De
La Rama S.S. Co. v. United States, 344 U.S. 386, 390 (1953).
Accord, Assessors v. Osbornes, 76 U.S. (9 Wall.) 567, 575 (1870);
Insurance Co. v. Ritchie, 72 U.S. (5 Wall.) 541, 544 (1867).
No provision of the AEDPA preserves the courts of appeals'
jurisdiction over petitions for review that were pending at the
___________________(footnotes)
7 Accord 511 U.S. at 293 (Scalia, J., concurring in the
judgments) ("Our jurisdiction cases are explained * * * by the fact
that the purpose of provisions conferring or eliminating
jurisdiction is to permit or forbid the exercise of judicial power
-- so that the relevant event for retroactivity purposes is the
moment at which that power is sought to be exercised.").
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time of its enactment. 8. Accordingly, Section 440 (a) operated
immediately to eliminate that jurisdiction. Like other new juris-
dictional provisions, Section 440 (a) speaks immediately and pro-
spectively to deny courts the power to review final orders of
deportation entered against alien aggravated felons. Id. at 274.
With the exception of the Seventh Circuit, which deviated from
the others in a limited respect not applicable here, every court of
appeals that has considered the matter has reached the same con-
clusion, resulting in the dismissal of petitions pending before
them. See Fernandez v. INS, Nos. 95-9550 & 96-9504 (10th Cir. May
12, 1997); Figueroa-Rubio v. INS, 108 F.3d 110 (6th Cir. 1997);
Boston-Bollers v. INS, 106 F.3d 352, 354-355 (11th Cir. 1997);
Kolster v. INS, 101 F.3d 785, 787-791 (1st Cir. 1996); Salazar-Haro
v. INS, 95 F.3d 309 (3d Cir. 1996), cert. denied, No. 96-1310 (May
27, 1997); Hincapie-Nieto v. INS, 92 F.3d 27, 29 (2d Cir. 1996);
Duldulao v. INS, 90 F.3d 396, 398-400 (9th Cir. 1996); Mendez-Rosas
v. INS, 87 F.3d 672, 674-676 (5th Cir. 1996), cert. denied, 117 S.
___________________(footnotes)
8 Section 440 (f) of the AEDPA provides that the amendments
made by Section 440 (e) (relating to modifications made to the
definition of "aggravated felony") "apply to convictions entered on
or after the date of [enactment]." 110 Stat. 1278. There is no
provision regarding the effective date of other subsections of
Section 440, however, and provisions relating to various other
Section provide no reliable indication of Congress's intent in
that regard. See Duldulao, 90 F.3d at 398 n.2; Mendez-Rosas v.
INS, 87 F.3d 672, 675 & n.4 (5th Cir. 1996), cert. denied, 117 S.
Ct. 694 (1997).
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Ct. 694 (1997); see also Santos v. INS, petition for cert. pending
(No. 96-8501). 9
In any event, because the court of appeals did not advert to
the issue of continuing jurisdiction in this case (compare
Duldulao, supra), petitioner received full appellate consideration
of his challenge to the final order of deportation entered against
him. Particularly in light of Section 440(a) of the AEDPA, his
claims do not warrant any further review.
___________________(footnotes)
9 In Reyes-Hernandez v. INS, 89 F.3d 490, 492-493 (7th Cir.
1996), the Seventh Circuit held that if an alien waived a colorable
defense to deportability as part of a litigating strategy based on
pre-AEDPA law, the court would entertain a petition for review
because "to make the concession of deportability a bar to relief
under Section 212 (c) would be to attach a new legal consequence to"
the waiver. That conclusion is at odds with this Court's teaching
that jurisdictional statutes address the power of the courts, not
the expectations of litigants. See Landgraf, 511 U.S. at 274-275.
Moreover, we agree with the Second Circuit that deportability is
generally conceded not as part of a litigating strategy, but "be-
cause there is no conceivable defense available." Hincapie-Nieto,
92 F.3d at 30. The Seventh Circuit has limited Reyes-Hernandez to
its facts. Arevalo-Lopez v. INS, 104 F.3d 100 (7th Cir. 1997)
(court will not assert jurisdiction if petitioner either contested
deportability or had no colorable defense); Yang v. INS, 109 F.3d
1185, 1191 (7th Cir. 1997) ("Reyes-Hernandez is a decision with a
limited domain, as Arevalo-Lopez properly recognizes -- a domain
that it would be inappropriate to expand, given the force of prece-
dent in other circuits."). In this case, petitioner contested
deportability. See Pet. App. B3. He admitted, however, the crim-
inal convictions that rendered him deportable, and the Immigration
Judge found that deportability had been established "by clear, con-
vincing, and unequivocal evidence." Id. at B4.
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CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
WALTER DELLINGER
Acting Solicitor General
FRANK W. HUNGER
Assistant Attorney General
DONALD E. KEENER
EMILY A. RADFORD
CARL H. MCINTYRE, JR.
Attorneys
JUNE 1997